Professor Anupama Singh vs Himachal Pradesh University & Anr
2023 Latest Caselaw 18051 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

Civil Writ Petition No. 3440 of 2023.

Reserved on: 20th October, 2023.

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Date of decision: 17th November, 2023.

Professor Anupama Singh ...Petitioner.

Versus

Himachal Pradesh University & Anr. ....Respondents.

Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 Yes.

For the Petitioner: Mr. Ashok Sharma, Senior Advocate, with Ms. Anubhuti Sharma, Advocate.

For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Devender K. Sharma, Advocate.

Satyen Vaidya, Judge (Oral).

By way of instant petition, the petitioner has

prayed for following substantive relief(s):-

"i). That the decision of University vide Item Spot Discussion No. 9 dated 6.4.2023 may kindly by declared as unconstitutional and null and void and nonest in the eyes of law.

ii). That the impugned order cancelling the extraordinary leave granted to the petitioner Annexure P-4, may kindly be quashed and the

Whether reporters of the local papers may be allowed to see the judgment?

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respondent may very kindly be directed to

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produce the entire record pertaining to the

case of the petitioner for the kind perusal of this Hon'ble Court."

2. Though the petitioner holds substantive post of

Professor in Himachal Pradesh University (for short "the

University") in the department of Public Administration, but is

presently working as Pro-vice Chancellor in Sardar Patel

University, Mandi, Himachal Pradesh (for short "SPU") since

21.4.2022. Her appointment as Pro-vice Chancellor of SPU

was made by the Chancellor of said university vide order

dated 20.04.2022.

3. On her appointment as Pro-vice Chancellor of SPU,

petitioner applied to the University for grant of extraordinary

leave (EOL) for three years w.e.f. 21.04.2022 to 20.04.2025

vide her application dated 24.05.2022. The Executive

Council of the University (for short 'the EC') vide decision

taken in its meeting held on 20.07.2022 granted

extraordinary leave (without pay) to the petitioner for the

period 21.04.2022 to 20.04.2025. The said decision was

conveyed by the Registrar of the University vide office order

dated 17.08.2022.

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4. The EC of the University vide decision taken in its

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meeting dated 06.04.2023, cancelled the EOL earlier granted

to the petitioner with direction to join back her duties in

ICDEOL, H.P. University, Shimla. The petitioner represented

to His Excellency Governor of Himachal Pradesh against the

action of the University in cancelling her EOL, but the same

remained undecided

and in the meanwhile,

approached this Court by way of instant petition assailing the r petitioner

aforesaid action of the University.

5. The petitioner has alleged that the action of

respondents is not bonafide and is result of malice. The

impugned action has also been assailed on the ground that

the same is result of colourable exercise of power. As per

petitioner, the object of the University was to get rid of Vice

Chancellors and Pro-Vice Chancellors of other Universities

under the garb of cancellation of their EOL. It is further

alleged that the appointment of petitioner has been made by

the Chancellor of SPU under Section 19 of the Sardar Patel

University Mandi, Himachal Pradesh (Establishment and

Regulation) Act, 2021 (for short 'the SPU Act') for a period of

three years and her removal from the post can only be

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directed by the Chancellor of the University by resorting to

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the provisions of the Act itself. The impugned action of the

University has been alleged to be illegal and unconstitutional

on the ground that it amounts to the unauthorised and illegal

curtailment of right of tenure to work as Pro-vice Chancellor of

the SPU.

6.

The petitioner has further assailed the impugned

action of the university on the grounds, firstly, that the EC

had no material before it which warranted the impugned

action, secondly, there are no reasons on the file to support

the decision of EC to cancel the EOL of the petitioner, thirdly

the EC has exceeded its jurisdiction by not using the power

for the purpose it was meant, fourthly, the EC has taken the

decision to get rid of persons who are not pliable fifthly, the

action of the University was bad as it has tried to achieve a

result indirectly, which could not be done by it directly. It has

further been submitted that the Executive Council cannot

usurp the powers of the Chancellor, who happens to be the

Constitutional Authority i.e. His Excellency the Governor of

the State.

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7. The University has contested the claim of the

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petitioner by making reference to Rule 36.4(a) of Chapter

XXXVI (Leave Rules for the Employees of the University).

According to the university, the petitioner cannot claim leave

as a matter of right and the EC has discretion to refuse or

revoke the leave of any description. It is further submitted

that the decision was taken by the EC to revoke the EOL of

the petitioner and others in the interest of students and the

institution as there was paucity of faculty members in the

concerned academic departments. The Rules of Business

provide for consideration of spot item by the EC and the said

Council in its meeting dated 06.04.2023 had taken up the

spot discussion on the item regarding cancellation of EOL of

the petitioner and others as the academic curriculum of the

university was being disturbed.

8. I have heard Mr. Ashok Sharma, Senior Advocate,

for the petitioner and Mr. Anup Rattan, Advocate General, for

the respondents and have also gone through the record

carefully.

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9. In the first instance, the objection raised by the

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University that the appointment of petitioner was a pleasure

appointment is taken up for discussion.

10. The scope of doctrine of pleasure has been

elaborately discussed by the Constitution Bench of Hon'ble

Supreme Court in B.P. Singhal vs. Union of India and

Court has held as under:-

r to another, (2010)6 SCC 331 wherein the Hon'ble Supreme

"22. There is a distinction between the doctrine of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a democracy governed by rule of law. In a nineteenth century feudal set-up

unfettered power and discretion of the Crown was not an alien concept. However, in a democracy

governed by Rule of Law, where arbitrariness in any form is eschewed, no Government or Authority has

the right to do what it pleases. The doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically. It is presumed that

discretionary powers conferred in absolute and unfettered terms on any public authority will necessarily and obviously be exercised reasonably and for public good.

23. ........

24. It is of some relevance to note that the `Doctrine of Pleasure' in its absolute unrestricted application does not exist in India. The said doctrine

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is severely curtailed in the case of government

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employment, as will be evident from clause (2) of

Article 310 and clauses (1) and (2) of Article 311. Even in regard to cases falling within the proviso to clause (2) of Article 311, the application of the

doctrine is not unrestricted, but moderately restricted in the sense that the circumstances mentioned therein should exist for its operation. The Canadian Supreme Court in Wells v.

Newfoundland [1999 (177) DL (4th) 73(SCC)] has concluded that "at pleasure" doctrine is no longer justifiable in the context of modern employment

relationship.

25-32.............

33. The doctrine of pleasure as originally envisaged in England was a prerogative power

which was unfettered. It meant that the holder of an office under pleasure could be removed at any time,

without notice, without assigning cause, and without there being a need for any cause. But

where rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of

scrutiny during judicial review may vary. But the need for reason exists. As a result when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however necessarily be read as being subject to the "fundamentals of constitutionalism". Therefore in a constitutional set up, when an office is held during the pleasure of any Authority, and if

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no limitations or restrictions are placed on the "at

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pleasure" doctrine, it means that the holder of the

office can be removed by the authority at whose pleasure he holds office, at any time, without notice and without assigning any cause.

34. The doctrine of pleasure, however, is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not

dispense with the need for a cause for withdrawal of the pleasure. In other words, "at pleasure" doctrine enables the removal of a person holding office at the pleasure of an Authority, summarily, without any

obligation to give any notice or hearing to the

person removed, and without any obligation to assign any reasons or disclose any cause for the removal, or withdrawal of pleasure. The withdrawal

of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons."

11. The appointment of Pro-vice Chancellor in SPU is

governed by Section 19 of the SPU Act, which reads as under:-

"19. Pro-Vice-Chancellor.--(1) The Pro-Vice- Chancellor shall be a whole time officer of the University. The Pro-Vice-Chancellor shall be appointed by the Chancellor in consultation with the State Government, on such terms and conditions as the State Government may determine.

(2) Except as expressly provided in sub- section (4) and (8), the Pro-Vice-Chancellor shall, subject to the pleasure of the Chancellor, hold office for a term of three years from the date he enters

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upon his office and shall, on the expiry of his office, be eligible for reappointment to that office:

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Provided that notwithstanding the expiry of the term of his office, the Pro-Vice-Chancellor shall continue in office untill his successor is appointed and enters

upon his office.

(3) The emoluments and other conditions of service of the Pro-Vice-Chancellor shall be such as may be prescribed and shall not vary to his

disadvantage after his appointment.

(4) A person appointed as Pro-Vice-Chancellor shall retire from office if during the term of his office

or any extension there of, he completes the age of sixty five years.

(5) The Chancellor, by general or special order, may place the Pro-Vice-Chancellor under suspension,--

(a) where an enquiry under sub-section (8) of this section is contemplated or is pending; or

(b) where, in the opinion of the Chancellor, he

engaged himself in activities prejudicial to the interest of the University; or

(c) where a case against him in respect of any criminal offence is under investigation, inquiry

or trial; or

(d) where his continuance in office will prejudice the investigation, inquiry or trial (e.g. apprehended tempering with documents or to influence witnesses).

(6) The Pro-Vice-Chancellor under suspension shall be entitled to a subsistence allowance at an amount equal to leave salary which the Pro-Vice- Chancellor would have drawn if he had been on leave on half average pay or on half pay and in

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addition, dearness allowance, if admissible on the basis of such leave salary:

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Provided that where the period of suspension exceeds three months, the Chancellor shall be competent to vary the amount of subsistence

allowance for any period subsequent to the period of the first three months as follows:--

(a) the amount of subsistence allowance may be increased by a suitable amount not exceeding

fifty percent of the subsistence allowance admissible during the period of first three months, if, in the opinion of the Chancellor, the

period of suspension has been prolonged for reasons to be recorded in writing, not directly

attributable to the Pro- Vice-Chancellor;

(b) the amount of subsistence allowance, may be reduced by a suitable amount, not exceeding

fifty percent of the subsistence allowance admissible during the period of first three months, if, in the opinion of the Chancellor, the

period of suspension has been prolonged for reasons, to be recorded in writing, directly

attributable to the Pro- Vice-Chancellor; and

(c) the rate of dearness allowance shall be

based on the increased or, as the case may be, the decreased amount of subsistence allowance admissible under clause (a) and (b).

(7) No payment under sub-section (6) shall be made unless the Pro-Vice-Chancellor furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.

(8) If, in the opinion of the Chancellor, the Pro- Vice-Chancellor wilfully omits or refuses to carry out the provisions of this Act, or abuses the powers

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vested in him and if it appears to the Chancellor that the continuance of the Pro-Vice-Chancellor in office is

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detrimental to the interest of the University, the Chancellor may, after consultation with the Executive Council and the Government, by order remove the

Pro-Vice-Chancellor after giving him an opportunity of showing cause against the action proposed to be taken against him:

Provided that in the event of taking any action on a

report of an enquiry under section 10 or section 12 of this Act, as the case may be, no further enquiry shall be necessary under this sub- section but the

Pro-Vice- Chancellor shall be afforded an opportunity of being heard after making him available a copy of

enquiry report.

(9) The Pro-Vice-Chancellor may, by writing under his hand addressed to the Chancellor, resign

his office. The resignation shall be delivered to the Chancellor ordinarily at least sixty days prior to the date on which the Pro-Vice- Chancellor wishes to be

relieved from his office, but the Chancellor may relieve him earlier. The resignation shall take effect

from the date of his relieving."

12. The Chancellor of SPU is empowered to appoint

Pro-vice Chancellor in consultation with the State

Government, on such terms and conditions as the State

Government may determine. The Pro-vice Chancellor holds

office subject to the pleasure of the Chancellor. However, the

SPU Act itself provides for the tenure, suspension and removal

of Pro-vice Chancellor of SPU as under:

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(i) The appointment as per sub-section (2) of Section 19

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is for a term of three years subject, however, to the

condition that no person shall continue on such post beyond the age of 65 years.

(ii) Sub-section 5 of Section 19 vests Chancellor with

power to suspend the Pro-vice Chancellor on existence of exigencies detailed therein.

(iii) Under sub-section 8 of Section 19, the Chancellor is

empowered to remove the Pro-vice Chancellor from office on account of existence of exigencies detailed therein and subject to affording of opportunity of show cause to the person against whom the action is proposed.

13. Thus, the statutory scheme clearly envisages the

mode and manner of appointment, suspension and removal of

Pro-vice Chancellor of SPU. The appointment can be made by

the Chancellor in consultation with the State Government.

Similarly, the removal of Pro-vice Chancellor can be done by

the Chancellor after consultation with the Executive Council of

the University and the Government. The prescription that the

Pro-vice Chancellor shall hold the office at the pleasure of

Chancellor has to be read in conjunction with the provisions of

sub-section 5 and 8 of Section 19. The appointment of Pro-

vice Chancellor in SPU cannot be said to be a pleasure

appointment in 'stricto sensu' as it is circumscribed by

statutory restrictions.

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14. It is not in dispute that the petitioner holds a

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substantive post of Pro-vice Chancellor in the University,

therefore, she is governed by the service rules of the

university. At this stage it will be relevant to notice that for

the purpose of grant of leave to its staff the University has

formulated leave rules. Rule 36.4 of the Leave Rules for the

Employees of the University reads as under:-

"36.4. (a) Leave cannot be claimed as of right. When

the exigencies of service so require, discretion to refuse

or revoke leave of any description is reserved to the authority, empowered to grant it.

(b) Leave shall not be granted to an employee whom a competent authority has decided to dismiss, remove or

compulsorily retire form service.

(c) Leave at the credit of an employee in his leave

account shall lapse on the date of compulsory retirement; provided that if in sufficient time before

that day he has (1) formally applied for leave due as preparatory to retirement and been refused it; or

(2) ascertained in writing from the sanctioning authority that such leave if applied for would not be granted, in either case the ground of refusal being the requirements of the University service, then the employee may be granted, after the date of retirement, the amount of leave so refused subject to a maximum of 120 days.

(d) The Executive Council may, at its discretion, grant an employee, who has completed at least five years service in the University, extraordinary leave (without

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pay) for taking up employment elsewhere with the permission of the competent authority, by retaining his

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lien on his substantive post, for a period of two years in the first instance, which may be extended by one year for every succeeding three years of service;

Provided that the Executive Council may consider the individual cases on merit but the total period of extra ordinary leave (without pay ) shall in no case exceed five years;

Provided further that the extra ordinary leave shall not count for increment except in the following cases:-

r Leave granted to accept an invitation to a teaching post or fellowship or research-cum-teaching

post or an assignment for technical or academic work of importance."

15. In light of above provision EOL or leave of any

other kind cannot be claimed as vested right by an employee

of the University. Leave is an entitlement as a part of service

condition. It can be refused in the exigency of service. The

right of the employer to sanction or deny the leave to its

employee also cannot be disputed. Rule 36.4(a) of Leave

Rules for Employees of the University specifically provides

that leave cannot be claimed as of right and when the

exigency of the services so required, discretion to refuse or

revoke leave is reserved to the authority, empowered to grant

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it. Needless to say, that the discretion so vested in the

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authority is to be based on objective consideration.

16. Once the administrative power vests in an

authority to exercise its discretion, the question arises as to

the scope of judicial review over the discretion so exercised.

In S.R. Venkataraman vs. Union of India and another,

as under: -

r to (1972)2 SCC 491, the Hon'ble Supreme Court has observed

"If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the

law they have not exercised their discretion."

17. Guiding principle on the issue can be extracted

from the following precedents:

In Rameshwar Prasad and others (VI) vs. Union

of India and another, (2006)2 SCC 1, the Hon'ble

Supreme Court has held as under:-

"240. A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could

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ever dream that it lay within the powers of the authority.

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241. It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the

subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. (See: Shalini Soni v. Union

of India and others 1980 (4) SCC 544).

242. The Wednesbury principle is often misunderstood to mean that any administrative

decision which is regarded by the Court to be

unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the

Wednesbury sense if (i) it is based on wholly irrelevant material or wholly irrelevant consideration,

(ii) it has ignored a very relevant material which it

should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have

reached to it.

243. As observed by Lord Diplock in CCSU's case

(1984)3 All ER 935, a decision will be said to suffer from Wednesbury unreasonableness if it is

"so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"."

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Similar reiteration can be found in Khudiram Das vs.

.

The State of West Bengal and others, (1975)2

SCC 81:-

"9. But that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability. The Courts have by judicial decisions carved out an area, limited

though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the

courts have proceeded is that the subjective

satisfaction being a condition precedent for the exercise of the power conferred on the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority: if it is not,

the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by

judicial decisions for saying that no subjective

satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a

case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Bannerji (2) is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose : such a case would also negative the existence of satisfaction on the part of the authority. The existence of 'improper purpose', that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in

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several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and

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therefore, if, in exercising the power, the authority has acted under the dictation of another body as the Commissioner of Police did in Commissioner of Police

v. Gordhandas Bhanji and the Officer of the Ministry of Labour (AIR 1952 SC 16) and National Service did in Simas Motor Units Ltd. v. Minister of Labour and National Service (AIR 1964 SC 72) the exercise of the

power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of

each individual case by self-created rules of policy or in any other manner. The satisfaction said to have

been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this

happens, the satisfaction of the authority would not be in respect of the thing in regard to which it is required to be satisfied. Then again the satisfaction

must be grounded on materials which are of rationally probative value'. Alachindar v. King (AIR

1950 FC 129). The grounds on which the satisfaction is based must be, such as a rational human being

can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be

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bad. Pratap Singh v. State of Punjab(AIR 1964 sc 72). If there are to be found in the statute expressly or by

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implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The

authority must call its attention to the matters which it is bound to consider."

18. In the case in hand, petitioner has not laid any

challenge to the rules governing the grant, refusal,

cancellation of extraordinary leave.

r Petitioner has also not

set up a case assailing power of the EC to issue the

revocation order. Thus, it takes me to examine the

contentions raised on behalf of the petitioner against the

impugned action of the University.

19. Learned Senior Counsel for the petitioner has

contended with vehemence that the petitioner has not set up

a case of malice in fact. According to the petitioner, the action

of respondents is actuated with malice in law. He submitted

that the purpose of impugned action was to get rid of those

persons from holding the posts of VCs or Pro VCs in other

institutions who were not pliable. The impugned action has

been termed as colourable exercise of power for achievement

of above purpose. Reference has also been made in the

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pleadings to the timings of impugned action by relating the

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same to change of political regime in the State after

December 2022 and induction of new political nominee to the

EC. It has further been submitted that the fact that no

reasons are borne out from the records is evident of legal

malice.

20.

The legal malice or malice in law has been

considered by the Hon'ble Supreme Court in Ramjit Singh

Kardam and others vs. Sanjeev Kumar and others,

(2020)20 SCC 209:-

64. Shri Kapil Sibal, learned senior counsel has emphatically

submitted that in the writ petitions, there are no allegations of

mala fide against the Chairman or any member of the

Commission and further neither Chairman nor any members

being impleaded as party respondent by the writ petitioner, the

petitioners could not have challenged the allocation of marks in

viva voce and there was no basis for any claim that marks in

the viva voce of candidates having high academic qualification

were deliberately reduced and those, who had poor academic

records were deliberately given marks between 20 to 27 in the

viva voce.

65. Shri Kapil Sibal has placed reliance on judgment of

this Court in Ratnagiri Gas and Power Private Limited Vs. RDS

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Projects Limited and Others, (2013) 1 SCC 524, where this

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Court has laid down that the law casts a heavy burden on the

person alleging mala fides. This Court has further laid down

that when the petitioners alleges malice in fact, it is obligatory

for the petitioner to furnish particulars and implead the

persons against whom such malice in fact is alleged. In

paragraphs 25, 26.1, 26.2 and 27, following has been laid

down:-

"25. ......................The law casts a heavy burden on the person alleging mala fides to prove the same on the basis

of facts that are either admitted or satisfactorily

established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decision-maker. Vague and general allegations unsupported by the

requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity.

26.1. In State of Bihar v. P.P. Sharma, 1992 Supp. (1) SCC

222, this Court summed up the law on the subject in the following words: (SCC p. 260, paras 50-51)

"50. 'Mala fides' means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose.

The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two

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questions, namely, (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative

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action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.

51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts

and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to

stand."

26.2. We may also refer to the decision of this Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 where the Court declared that allegations of mala fides

need proof of high degree and that an administrative action is presumed to be bona fide unless the contrary is

satisfactorily established. The Court observed: (SCC p. 790, para 56)

"56. ... It is well settled that the burden of proving mala fide is on the person making the allegations and the

burden is 'very heavy'. (Vide E.P. Royappa v. State of T.N., (1974) 4 SCC 3).There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa v. State of Maharashtra, (1976) 1 SCC 800 (SCC p. 802, para 2): 'It (mala fide) is the last refuge of a losing litigant.'"

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27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the

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persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person

concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned. It is important to remember that a judicial

pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him." (emphasis in

original)

66. There cannot be any dispute to the above preposition of law reiterated by this Court as above. We have noticed from the array of the parties in the writ petition that

neither Chairman nor the members of the Commission were personally impleaded nor there are any specific allegations of mala fide against the Chairman or the

members of the Commission.

67. The present is not a case of malice in fact. The "malice in fact" and "malice in law" are two well- known concepts in law. In Ratnagiri Gas and Power Private Limited (supra), this Court

has dealt with both the concepts, i.e., "malice in fact" and "malice in law". Dealing with the conceptual difference between "malice in fact" and "malice in law", this Court laid down following in paragraphs 30, 31 and 32:-

"30. ............................The conceptual difference between the two has been succinctly stated in the following paragragh by Lord Haldane in Shearer v. Shields, 1914 AC 808 (HL) quoted with approval by this Court in ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521: (SCC p. 641, para 317)

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'317. ... 'Between "malice in fact" and "malice in law" there is a broad distinction which is not peculiar to any

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system of jurisprudence. The person who inflicts a wrong

or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the law and can only act within the law. He may, therefore, be guilty of "malice in law",

although, so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. "Malice in fact" is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act.'" (Shearer case, 1914 AC 808 HL, AC pp. 813-14)

31. Reference may also be made to the decision of this Court in State of A.P. v. Goverdhanlal Pitti, (2003) 4 SCC 739 where the difference between "malice in fact" and

"malice in law" was summed up in the following words:

(SCC p. 744, paras 12-13)

"12. The legal meaning of 'malice' is 'ill will or spite towards a party and any indirect or improper motive in

taking an action'. This is sometimes described as 'malice in fact'. 'Legal malice' or 'malice in law' means 'something done without lawful excuse'. In other words,

'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act

done from ill feeling and spite. It is a deliberate act in disregard of the rights of others.' (See Words and Phrases

Legally Defined, 3rd Edn., London, Butterworths, 1989.)

13. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object." (emphasis supplied)

...25...

32. To the same effect is the recent decision of this Court in Ravi Yashwant Bhoir v. Collector, (2012) 4 SCC 407

.

wherein this Court observed: (SCC p. 431, paras 47-48)

"Malice in law

47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part

of the State. 'Legal malice' or 'malice in law' means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which

is taken with an oblique or indirect object. It is an act

done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.

48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for 'purposes foreign to those for which it is in law intended'.

It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the

authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for

unauthorised purpose constitutes malice in law. (See ADM, Jabalpur v.Shivakant Shukla, (1976) 2 SCC 521, Union of India v. V. Ramakrishnan, (2005) 8 SCC 394 and Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437.)"

68. The malice in law has been dealt as "something done without lawful excuse". The malice in law is also mala fide exercise of power, exercise of statutory power for purposes foreign to those for which it is in law intended. In the present case, the power to device the mode of selection and fix the

...26...

criteria for selection was entrusted on the Commission to further the object of selection on merit to fill up post in State

.

in consonance with the provisions of Articles 14 and 16 of the Constitution of India. When the alteration of criteria has been made, which has obviously affected the merit selection as we

have found above, the allegations which have been made in the writ petition against the Commission in conducting the selection are allegations of malice-in-law and not malice-in- fact."

21. An extract from judgment passed by the Hon'ble

Supreme Court in Smt. S.R. Venkataraman vs. Union of

India & Anr, (1979)2 SCC 491 also can gainfully be

reproduced here in the context of issue under decision:-

"6. It is however not necessary to examine the

question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its

repository was acting in good faith or in bad faith. As was stated by Lord Goddard C.J., in Pilling v. Abergele Urban

District Council (1950) 1 KB636 , where a duty to determine a question is conferred on an authority which state their

reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter."

22. Keeping in view the facts of the case, it cannot

be said that the discretion of power has been exercised for an

...27...

unauthorised purpose. The EC is the competent authority to

.

grant or cancel the leave including EOL to the employees of

the University. There is nothing on record to suggest that the

Executive Council of the University had acted malafide or in

bad faith. The petitioner has specifically pleaded in the

petition that the impugned action of EC had come into play

only after the change of political regime in the State.

specifically mentioned that in December 2022 Indian National r It is

Congress formed the government in the State and as a result

the government nominee in the Executive Council was also

changed. This time it was the Member of Legislative Assembly

of the ruling party and the decision in the EC with respect to

cancellation of EOL of petitioner and others was taken at his

instance. Nothing further has been stated and in view of this

specific stand taken by learned Senior Counsel for the

petitioner that his case was not on the issue of malice in fact,

this Court does not find any reason to suspect the

germination of the impugned decision to be actuated by bad

faith or malafide. Petitioner has not been able to show any

reason as to why University would have acted against her for

the reasons other than those which have been taken into

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consideration by the EC in its meeting dated 06.04.2023. It

.

also cannot be said that the impugned action is without any

lawful excuse. In fact, the impugned action of EC cannot be

said to be wrongful. Once it is a rightful action, the legal

malice is not attracted. Further, since the petitioner has no

vested right to claim EOL, the impugned action also cannot be

23. to said to be in derogation of any right of the petitioner.

Another question that arises is whether the lawful

action taken by the University would stand clogged merely by

the reason of such action resulting in pre mature culmination

of job undertaken by its employee after availing leave from

the University?

24. Petitioner being on substantive rolls of the

University, owes legal obligation to serve the university. In

case, the University requires the services of the petitioner in

the interest of students, no oblique motive can be attributed

to the University in recalling EOL of the petitioner in the

absence of any definite material to suggest so. Petitioner

was appointed as Pro-vice Chancellor vide order dated

20.04.2022 issued in this behalf. Petitioner had joined SPU as

Pro-vice Chancellor on 21.04.2022. She applied for

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extraordinary leave on 24.05.2022, which was sanctioned by

.

the Executive Council in its meeting held on 20.07.2022 and

was finally conveyed by the Registrar of the University vide

office order dated 17.08.2022. It is not the case of the

petitioner that the petitioner had sought prior permission of

the University to take up the appointment of Pro-vice

Chancellor of SPU. EOL was sanctioned much later than the

date of joining of the petitioner on the said post.

r In such

circumstances, there cannot be any estoppel against the

university. Even otherwise also the petitioner cannot be said

to have acquired any vested right to continue as Pro-VC of

SPU in derogation of her legal obligation(s) towards her

principal employer.

25. It is also alleged that the university is guilty of

colourable exercise of powers. No doubt, any action which

does not reflect fairness or smears of abuse of powers cannot

withstand judicial review. In Internet and Mobile

Association of India vs. Reserve Bank of India,

(2020)10 SCC 274, it was observed as under:-

".....To constitute colourable exercise of power, the act must have been done in bad faith and the power must have been exercised not with the object of

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protecting the regulated entities or the public in

.

general, but with the object of hitting those who form

the target. To constitute malice in law, the act must have been done wrongfully and willfully without reasonable or probable cause."

26. As held above, no material is there on record to

suggest any malafide or bad faith in the impugned action of

the university. The colourable exercise of power and malice in

law belong to same species. Therefore, the petitioner having

failed to show malice in law cannot succeed on the ground of

colourable exercise of power.

27. In light of above discussion, there is no merit in

this petition and the same is accordingly dismissed. Pending

applications, if any, also stand disposed of.

(Satyen Vaidya)

Judge 17th November, 2023.

(jai)